Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 12]

Shrivastava: article 26 is not a new right but amplification of article 25 and it doesn't have to subject to other provisions but words like with regard to can be used.

Shrivastava:if mylords accept the submission that article 26 prevails over article 25- then article 26 would read like

J Kumar: you would have to go to article 25

Shrivastava: It follows a necessary corollary that both the articles have to stand in harmony with each other and cannot be read in a manner that any one of them would in any manner, much less by interpretation of the Court, destroy or eat away the heart and soul of the other article.

Shrivastava: If the intention of the Constitution makers was to give an overriding effect to the rights of “the religious denominations or sections thereof” as per Article 26 over the rights of persons “to the freedom of conscience and right freely to profess, practice and propagate religion” under Article 25(1) then, it is respectfully submitted that Article 26 had been drafted differently and its text would have commenced with a non obstante clause, which is not so.

This is a clear intention of the Constitution makers that Article 26 does not override Article 25 in general. Article 26 has no superior or overriding place in the scheme of the Constitution.

Shrivastava: An unlimited freedom if conceded in favour of religious denominations or a section thereof to manage its own affairs in matters of religion, as a sequitur it would follow that the concerned religious denomination can claim the right to mismanage its own affairs in matters of religion and there can be no state or legislative intervention. This will not only be illogical but unconstitutional also-mylords don't read it, it becomes absolutely untrammelled

Shrivastava: a, b, c and d are the facets of how you propagate article 25(1) rights in article 26

J Sundresh: so what you are saying is the object of denomination is bigger?

J Nagarathna: article 26 is the denominational personal right..he belongs to the denomination and follows that he can't raise issues

J Kumar: it will also lead to whether he has dual rights

Shrivastava: issue is whether the person is subsumed-that is not the way the constitution can be read that he is subsumed in the religious denomination and loses his individual rights

Shrivastava: By being a part of the religious denomination, the personal and fundamental right of the person guaranteed under Article 25(1) is not whittled down in any manner, otherwise it would mean that by joining a group, an individual would lose his persona or identity. Similarly, by being part of the religious denomination, a person does not lose or has lesser fundamental rights than what is guaranteed to him or her under Article 25.

Shrivastava: kindly see article 27.

there is articles 25 and 26 operating in their own areas, there is no conflict.